Sanjay Singh & Smt. Roshni Devi, Faridabad V. ITO Ward-3, Gurgaon

ITA 2375/DEL/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53039 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 17-10-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 23-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Assessee Lawyers: DR RAKESH GUPTA; ASHWANI TANEJA S
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 147; 144; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) SHRI DIVA SINGH, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.2375/DEL./2008 (ASSESSMENT YEAR : 1998-99) SHRI SANJAY SINGH & SMT. ROSHNI DEVI, VS. ITO, WAR D 3, (LEGAL HEIRS OF LATE SHRI KARTAR SINGH), GURGAON. 38A, MIANWALI COLONY, GURGAON. ITA NO.2376/DEL./2008 (ASSESSMENT YEAR : 1998-99) SHRI ROHTASH SINGH, VS. ITO, WARD 3, 38A, MIANWALI COLONY, GURGAON. GURGAON. (PAN : AYNPS5319R) (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. RAKESH GUPTA & SHRI ASHWANI TANE JA, ADVOCATES REVENUE BY : SHRI S. MOHANTY, DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : BOTH THESE APPEALS FILED BY DIFFERENT ASSESSEES AR ISE OUT OF THE ORDER OF THE CIT (APPEALS), PANCHKULA DATED 05.03.2008 FOR T HE ASSESSMENT YEAR 1998- 99 BUT THE ISSUES INVOLVED ARE COMMON, THEREFORE, B OTH ARE BEING DISPOSED OFF BY THIS COMMON ORDER. ITA NOS.2375 & 2376/DEL./2008 2 2. BOTH THE ASSESSEES ARE PARTNERS IN THE FIRM, M/S . ARAWALI GRIT UDYOG, GURGAON HAVING ONE HALF SHARE OF PROFIT EACH. IN T HE CASE OF SHRI KARTAR SINGH, THE ASSESSMENT WAS FRAMED ON THE LEGAL HEIRS , I.E., SHRI SANJAY SINGH AND SMT. ROSHNI DEVI. THE ASSESSMENT WAS PASSED U/ S 144 OF THE INCOME-TAX ACT. THE CIT (A), PANCHKULA DECIDED THE APPEAL AGA INST THE ASSESSEE. THE RECORDS ALSO SHOW THAT NONE ATTENDED BEFORE THE CIT (A) WHEN THE APPEALS WERE FIXED FOR HEARING. 3. THE GROUNDS OF APPEAL IN BOTH THE APPEALS ARE CO MMON AND REPRODUCED AS UNDER :- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN REOPENING THE ASSESSMENT PROCEEDING U/S 147 AND THAT TOO WITHOUT COMPLYING THE STATUTORY CONDITIONS PRESCRIBED U/S 1 47 TO 151. 2. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE A CTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN REOPENING OF THE IMPUGNED ASSESSMENT IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND IMPUGNED ORDER IS LIABLE TO BE DECLARED AS NULLITY. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN FRAMING THE ITA NOS.2375 & 2376/DEL./2008 3 IMPUGNED ASSESSMENT U/S 144 AND HAS ERRED IN MAKING ADDITION OF RS.3,63,500/- AS UNEXPLAINED INVESTMENT AND FURTHER A SUM OF RS.24,000/- ON ACCOUNT OF SALARY A ND RS.L,32,467/- ON ACCOUNT OF INTEREST. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN PASSING THE IMPUGNED ASSESSMENT ORDER WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD AND AFTER RECORDING INCO RRECT FINDING AND OBSERVATIONS. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN CHARGING INTERES T U/S 234A, 234B AND 234C. 6. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODI FY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH ORDER. 4. IN THE GROUND NO.4, THE ASSESSEE HAS ALSO PRAYED THAT THE ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER WITH OUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LE ARNED AR ALSO PLEADED THAT THE NOTICE ISSUED BY THE CIT (A) WAS ALSO NOT SERVE D UPON THEM AND HE ITA NOS.2375 & 2376/DEL./2008 4 PLEADED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR MAKING THE ASSESSMENT DE NOVO AFTER PROVIDING A N OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. LEARNED DR WAS NOT HAVING ANY SERIOUS OBJECTION TO THIS PROPOSITION. 6. AFTER HEARING BOTH THE SIDES, WE FIND THAT THE A SSESSMENT HAS BEEN FINALIZED EX-PARTE AND THE CIT (A) ALSO DECIDED THE APPEALS WITHOUT HEARING THE ASSESSEE. IN VIEW OF THESE FACTS AND IN THE IN TEREST OF JUSTICE AND EQUITY, WE FIND IT PROPER TO SET ASIDE THE ORDER OF THE AUT HORITIES BELOW WITH A DIRECTION TO DECIDE ALL THE ISSUES DE NOVO AT THE L EVEL OF ASSESSING OFFICER. ACCORDINGLY, WE RESTORE ALL THE ISSUES TO THE FILE OF THE ASSESSING OFFICER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF OCTOBER, 2011 AFTER THE CONCLUSION OF THE HEARING. (DIVA SINGH) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 25 TH DAY OF OCTOBER, 2011/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A), PANCHKULA. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.